P L D 1957 (W (PLP)

CONSTANTINE, J.

The respondent sued for damages for breach of the contract executed between himself and the defendant in April 1949 for the purchase of 5,000 maunds of cotton pods at the rate of Rs. 25-12-3 per maund. The contract stipulated that the delivery was to be made at Mirpurkhas Railway Station from 15th September 1949 to 15th October 1949 and payment was to be made on delivery, Rs. 10,000 were paid as ail advance. The plaint stated that inspite of several reminders, the defendant did not take delivery of the cotton pods in question between the dates agreed upon although the plaintiff was ready to give delivery of the same. The rate on 15th October 1949, of cotton pods at Mirpurkhas had dropped to Rs. 21 per maund. The written statement was to the effect that the defendant had demanded delivery, but the plaintiff had evaded delivery as he had no stocks ready to deliver. It was also denied that the rate of cotton pods on 15th October 1949, was Rs. 21 per maund. Additional pleas were put forward in the written statement. It was stated that it was agreed between the parties-that the plaintiff would deliver the cotton pods at the Railway Station and would then inform the defendant and the latter would then take delivery ; inspite of repeated demands the plaintiff never brought the goods to the railway station. It was further alleged that the defendant had despatched 1,000 new 'burkies' (Bardana or gunny bags) to the plaintiff by rail oil 1st October 1949, for the purpose of delivery of the cotton pods by the plaintiff. The written statement then recited that the contract had contained an arbitration clause, but since the arbitration was superseded by the Court nothing turns upon this pleading. The defendant counter-claimed for the return of the advance, Rs. 10,000 and also for the return of the burkies of their price Rs. 10,000 and Rs.5,000 by way of damages. The advocate for the plaintiff made a statement in Court that he denied the counter-claim as filed and also stated that it was barred by limitation and that the defendant had no right to file the counter-claim. The issues relevant to this appeal are issues 4, 7, and 8, which read as follows :- "

4. Has plaintiff committed any breach of contract as alleged by the defendant, or has defendant committed the breach as alleged by the plaintiff ? (7) Did the defendant supply 1,070 burkies to the plaintiff for the despatch of phutties as alleged in para. 12 of the written statement which the plaintiff did not return. (8) To what price of the burkies are the defendant entitled to get from the plaintiff ?" The defendant-firm is the owner of the Sind Oil Mills, Hyderabad (Sind) and the contract was entered into by Karamat Hussain on their behalf. This Karamat Hussain did not give evidence since according to the evidence of the Manager of the -Oil Mills, Sayed Reza, his services were dispensed with in about 1951 and his present whereabouts could not be traced. Karamat Hussain was the employee of the Mills for out-door work. An exchange of correspondence, principally telegrams, took place between the parties. On 29th September 1949, the plaintiff sent a telegram rescinding the contract and stating "though I have asked you many times to send 'bardana' for phutties and take delivery but still you have not sent bardana. Please send bardana immediately and get delivery of phutties". On 5th October 1949, a letter was sent by the defendant enclosing railway receipts dated 1st October 1949, for bundles of gunny-bags booked for the supply of phutties. This letter then stated : "Please expedite despatches". The evidence of Railway clerk at Mirpurkhas station was recorded on 12th March 1953, before the evidence of the plaintiff's side was recorded. He there proved that indemnity bonds had been executed by the plaintiff Abu Bakar, because he stated, he had lost the railway receipts. These indemnity bonds were signed, admittedly, by Abu Bakar who took delivery of the gunny-bags oil 6th October 1949. The plaintiff denied receiving the letter dated 5th October 1949 from the defendant. But it is hardly likely that the defendant is willing to go to the extent of forging a letter and the learned Sub-Judge does not come to a finding that this letter was not received, but relied on the surprising ground that this letter made no demand for delivery. Mr. Castellino for the plaintiff has not argued that, in fact, the letter was not received. The next in the correspondence is a telegram dated 11th October 1949, from the plaintiff to the defendant reciting the contract and then saying that despite 5 or b reminders to take delivery and make payment, the defendant had not paid any heed. Notice had been given by his wire of the 29th September but so far no arrangements for taking delivery had been made. Four days remained only. He presumed that the defendant was purposely delaying taking delivery on account of the fall in the rate of cotton pods. To this telegram no reply was sent. It will be noticed that this telegram did not mention that bardana had been despatched to the plaintiff or that he had taken delivery of the bardana on the 6th October. But it is equally surprising that the defendant did not reply to this telegram that he had supplied bardana and was awaiting delivery. The next item in the correspondence is a telegram from the plaintiff dated 18th October 1949, stating that the defendant had not taken delivery within time. The defendant had been personally told and wires had been sent requesting the delivery to be taken but delivery had not been taken ; nor had his notices been replied to. He therefore demanded the difference in rates ; namely between Rs. 21 and Rs. 25-12-3. To this the defendant replied by telegram dated 19th October 1949 :- "We sent two representatives but you were not available. Next our Karamat Hussain contacted you personally and matter was settled ; again sending representative." Here again, it is surprising to find that no denial of the allegations made in the telegram of the 18th was made. We then have a notice sent on the 1st November by the defendant stating that the plaintiff had not yet delivered cotton pods to the defendant and asking for an immediate supply of the phutties. This was 'followed up by a lawyer's notice dated the 10th November stating that the defendant had sent his man twice to the plaintiff between 15th September 1949 and 28th September 1949, with a request to arrange for the supply of phutties within the stipulated time. The bardana had been sent on 1st October 1949. After receipt of the telegram on 11th October 1949, the defendant immediately sent his man at Mirpurkhas to take delivery and the defendant had replied that he had not yet got cotton pods ready for delivery. He then cited the telegram of the 18th October and the reply of the 19th October, and stated that simultaneously with the telegram he had sent his man to see the defendant, who again replied that he could not get the phutties in time and would have them as early as possible. The plaintiff examined himself in addition to two clerks of Rally Bros. to prove the rates of cotton at Mirpurkhas on the material dates, and that the plaintiff had been supplying Rally Bros, with cotton, and two witnesses who stated that on 16th October 1949, Karamat Hussain had stated to the plaintiff that since he had exceeded the limit of his purchases and the price had gone down he was not prepared to take delivery of the cotton pods. The defendant led the evidence of the Manager, Syed Raza, who stated that Karamat Hussain and two employees, Najaf Ali and Muhammad Yusuf, had gone to take delivery of the phutties and had been told by plaintiff that he was not in a position to supply the phutties, Najaf Ali deposed that he had been demanding delivery from the plaintiff, but the plaintiff had stated that he had no cotton pods. The storekeeper was examined to prove that bardana had been despatched and that the bardana was not old but was new. The plaintiff swore that the bardana was returned to Karamat Hussain, The learned judge accepted this statement. But the learned judge drew a presumption against the defendant in that the register maintained by the defendant regarding stocks of gunny bags had not been produced. Since, however, the production of the register was objected to by the plaintiff's advocate, and this objection was upheld by the learned judge, it seems inconsistent to draw a presumption against the defendant on the ground that he had not produced the register while he was prevented from producing. The Railway documents state that the bardana was old. It is the plaintiff's case that Karamat Hussain had taken back the bardana because it was old. But whether this was the reason or the reason was the drop in price, we think that the fact that the telegram of the 11th has not mentioned bardana is consistent with this explanation that the bardana had been taken back. Furthermore had the bardana not been taken back, one would have expected an immediate reply from the defendant that bardana had been supplied to the plaintiff for the purpose of making delivery. The two witnesses, Momin and Muhammad Ibrahim ascribed a recollection of the meeting of the 16th October between the plaintiff and Karamat Hussain to the fact that they had gone to congratulate the plaintiff on his return from Haj. But, as was pointed out to Mr. Castellino, and it has been admitted by him, this occasion was inconsistent with his own case ; for Haji Abu Baker's signatures on the 6th on the indemnity bonds had been admitted, and if he had been on Haj then as my learned brother pointed out he could not have been in Mirpurkhas on the 6th. But if we exclude these witnesses from consideration, the fact remains that according to the defendant's telegram of the 19th Karamat Hussain had contacted Haji Abu Bakar personally. We think that the correspondence which passed between the parties shows that the probability is it favour of the plaintiff's case. The plaintiff's telegrams throughout maintained that he was ready to make delivery ; whereas the fact that no reply was sent to the plaintiff's telegram of the 12th October and the fact that the defendants telegram of the 12th in reply to the plaintiff's telegram of the 18th did not deny the charge that they were unwilling to take delivery but made a vague allegation that the matter was settled point distinctly to the inference that the defendants were not , ready to take delivery. This is consistent with the very important circum stance that the rate of cotton pods had declined by over Rs. 4 a maund. Mr. Castellino argued that the duty cast upon the buyer by a telegram if delivered is not satisfied by merely asking for delivery, but such application for delivery must be accom panied by tender of the price. He relied upon Nune Sivayya v. Maddu (I L R 58 Mad. 670). The remarks at pages 681-682 are as follows :- "But there is no evidence to show that if the respondents had applied for delivery and at the same time tendered the contract price as they were bound to do, the appellants would not have been able to satisfy the demand." In that case, however, the lawyer's notice of the 7th on behalf of the seller had stated that the purchaser should pay the amount due and the goods would be arranged to be delivered, and since delivery and payment are concurrent terms under the Sale of Goods Act, it appears to us that the remark of the Privy Council that the contract price should have been tendered at the same time was with reference to this statement, and that it is not necessary that an application for delivery should always be accompanied by tender of the contract price. It appears to us that the demand for delivery is an indication to the seller that the purchaser wishes to proceed with the contract and the seller will then arrange to make delivery and will be entitled to payment of the contract price's at the time of delivery in the absence of any contract to the Contrary. To sum up, we think that the correspondence between the parties supports the plaintiff's case that the burkies were returned and that the defendant had made no further appli cation for delivery (admittedly) bardana had to be supplied by the defendant) and had shown himself unwilling to proceed with the contract. The plaintiff on the other hand was ready and willing to execute his side of the bargain. The result is that the appeal is dismissed. The learned judge's reasoning having been largely faulty, we think there should be no costs of this appeal. K. M. A. Appeal dismissed.